TTHL5
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`Attorney Ref. 500-185
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`1 1-25-2003
`US. Patent & TMOfc/TM Mail Rcpt D1. #22
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`Consolidated Opposition Nos.
`91/155,890 and 91/156,769
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`Montana Grille, LLC,
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`Opposer,
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`v.
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`Ted’s Montana Grill, Inc.,
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`Applicant.
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`OPPOSER’S OPPOSITION TO APPLICANT’S MOTION FOR PROTECTIVE ORDER
`PREVENTING THE T EDWARD “TED” TURNER HI
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`Opposer, by its attorney, hereby files this brief in opposition to Applicant’s Motion For
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`Protective Order Preventing The Deposition Of Robert Edward “Ted” Turner III.
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`Applicant’s Motion fails to provide any legal or factual evidence justifying the entry of a
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`protective order. There is no allegation that Mr. Turner lacks personal lmowledge of facts
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`relevant to this case, and indeed, there is ample evidence that he has such knowledge. Nor is
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`there any allegation that Mr. Turner would face undue burden, or‘oe harassed, by having to
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`appear for the deposition. Therefore, Applicant’s Motion should be denied.
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`1.
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`ARGUMENT
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`As set forth in Rule 26(b)(l), “[p]arties may obtain discovery regarding any matter, not
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`privileged, that is relevant to the claim or defense of any party’. Fed. R. Civ. P. 26(b)(1).
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`Therefore, it is well-established that a protective order barring a deposition is a drastic remedy.
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`See, e.g., Speadmark, Inc. V. Federated Dept. Stores, Inc., 176 F.R.D. 116, 118 (S.D.N.Y. 1997)
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`(“An order barring a litigant from taking a deposition is most extraordinary relief’). The party
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`seeking such an order must establish good cause for such relief which is a very high burden of
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`proof. L‘
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`Courts have denied motions for protective orders seeking to preclude the deposition of a
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`corporate officer or other high ranking person when the deponent may have knowledge of the
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`relevant facts in a case. Sg,gg_., Speadmark, Inc., 176 F.R.D. 116 (chairman and CEO of
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`defendant Federated Department Stores, Inc.); Naftchi V. NYU Med. Ctr., 172 F.R.D. 130
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`(S.D.N.Y. 1997) (dean and chairman of the Department of Medicine of NYU School of
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`Medicine). This is because “[t]ederal courts have permitted the depositions of high level
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`executives when the conduct and knowledge at the highest corporate levels of the defendant are
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`relevant in the case.” In re Bridgestone/Firestone, Inc., 205 F.R.D. 535, 536-37 (S.D. Ind. 2002)
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`(allowing deposition of William Clay Ford, Jr., CEO and fonner Chairman of the Board of Ford
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`Motor Company)?
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`1 See also 6 James Wm. Moore, et al., Moore ’s Federal Practice, § 26.104[l] (3d ed. 2003) (“The court
`is authorized to issue a protective order only after a showing that good cause exists for the protection
`[sought]. The party requesting the protective order has the burden of demonstrating good cause.
`“Good cause” is established when it is specifically demonstrated that disclosure will cause a clear
`defined and serious injury. .
`. On the other hand, good cause is not established merely by showing that
`discovery may involve inconvenience and expense.”)
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`3 In fact, some courts have held that depositions are allowed even when the corporate officer claims to
`have no recollection of any of the facts underlying the litigation. See, e.g. A.I.A. Holdings, S.A. V.
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`Lehman Bros. Inc. 97-4978, 2000 US. Dist. LEXIS 15141, at *11-15 (S.D.N.Y. Oct. 17, 2000)
`(allowing deposition of chairman of defendant Bear Steams & Co., Inc. as opportunity to refresh
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`chairman’s memory); Holman v. ICN Pharrn. Inc., 98-0674, 1999 U.S. Dist. LEXIS 20017 (S.D.N.Y.
`Dec. 29, 1999) (allowed deposition of defendant’s president despite arguments that he had no personal
`knowledge of plaintiffs claims or defendant’s defenses, that he would not be called as a witness at trial,
`and that deposition would be unduly burdensome given president’s busy schedule as defendant’s
`chairman and CEO); see also Fears v. Wilhelmina, 02-4911, 2003 U.S. Dist. LEXIS 12850 (S.D.N.Y.
`July 25, 2003) (allowing the deposition of president of defendant Elite Model Management, Inc.).
`According to a well-respected and often cited treatise: “a protective order barring the taking of a
`deposition is difficult to justify and, under ordinary circumstances, the fact that the proposed deponent
`is a busy person or professes lack of knowledge of matters at issue does not support a protective order.”
`Moore ’s Federal Practice, § 26.l05[2][a].
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`Moreover, Applicant’s counsel had no hesitation noticing the deposition of Opposer’s top
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`corporate official, Daniel J. Davis. The deposition was taken on September 24, 2003. Applicant
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`should not now be heard to protest the deposition of one of its top officials.
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`A.
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`Ted Turner Has Personal Knowledge Of Information Relevant To This Case
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`In its Notice of Opposition, Opposer asserts that Applicant’s TED’S MONTANA GRILL
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`mark creates a likelihood of confusion with Opposer’s MONTANA GRILLE mark. Applicant
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`denies any likelihood of confusion.
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`The relevant facts in this case are, therefore, very straightforward. These include, but are
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`not limited to: (1) Applicant’s selection and adoption of the mark Ted’s Montana Grill; (2)
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`Applicant’s knowledge of Opposer and similar third party marks; (3) Applicant’s use or intended
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`use of its mark; (4) the relationship of Ted’s Montana Grill to the State of Montana; (5)
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`Applicant’s advertising and promotion or intended advertising and promotion of its mark; (6) the
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`class of customers or intended class of customers for Applicant’s services offered by Applicant
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`under its mark; (7) the channels of trade or intended channels of trade of the services offered by
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`Applicant under its mark; (8) instances of actual confusion; and (9) Applicant’s decision to apply
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`for registration of its mark.
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`Nowhere in its Motion does Applicant contend that Mr. Turner lacks personal knowledge
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`of the relevant facts. For good reason. Mr. Turner, in fact, has personal knowledge of the
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`relevant facts. Publicly available sources reveal that Mr. Turner was actively involved in the
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`decision to adopt and use the name Ted’s Montana Grill and in designing the concept of the
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`restaurant.
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`For example, according to an October 13, 2003 article in Nation’s Restaurant News,
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`“[n]ow 65, Turner, who at one time was the vice chairman of AOL Time Warner, said he created
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`the restaurant in concert with George McKerrow, Jr.” E Higgins Decl., Exhibit A. A January
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`2002 Press Release adds “Turner, who owns 1.7 million acres of ranchland in Montana and
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`throughout the West, hatched the idea of a new kind of family-oriented restaurant [Ted’s
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`Montana’s Grill] with McKerrow”. §_@ Higgins Decl., Exhibit B. In that same Press Release,
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`Mr. Turner is quoted as saying “I want to introduce all Americans to the Montana I’ve grown to
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`loVe”.
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`I_d,
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`Mr. Turner has also apparently been actively involved in the operation of Ted’s Montana
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`Grill. According to a February 17, 2003 article in Nation’s Restaurant News:
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`Indeed, billionaire Tumer’s departure from AOL Time Warner has raised
`speculation about how involved the senior entrepreneur may become in
`the emerging brand that bears his signature. As one of the nation’s largest
`private landowners, Turner has holdings that include 10 percent of the
`once nearly extinct American bison population, which numbers 400,000
`head currently. “I’ve got a lot of buffalo to move,” CNN founder Turner
`once quipped at a convention of broadcasters while explaining his launch
`of Ted’s with McKerrow.
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`“Ted has been very involved from the beginning, ” said McKerrow . . .
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`“He [Turner] enjoys this business because restaurants are Qositive and
`entregreneurial and because this is a startug ogeration, ” McKerrow said
`of his gartner.
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`“At this time o[ his life Ted is willing to sgend energy on the things he
`enioys, ” McKerrow added. “We have a lot of communication. He ’s a
`terrific chairman and a great guidance counselor. ”
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`S_ee Higgins Decl., Exhibit C (emphasis added).
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`In a January 31, 2003 article in the Los Angeles Times, Pete Meersman of the Colorado
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`Restaurant Association stated that “Turner has visited his Colorado restaurants at least half a
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`dozen times” and “[i]t looks like he’s going to be very hands-on”. §e_e Higgins Decl., Exhibit D
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`(emphasis added).
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`In a June 2003 interview with the Columbus Dispatch (Ohio), Mr. Turner was asked
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`whether he had been to all of the Ted’s Montana Grill locations, to which he answered: “Are you
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`kidding? I’ve been to all eight, even some, like Lexington, Ky., before they were opened.” Li,
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`Exhibit E.
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`Mr. Turner has also actively promoted Ted’s Montana Grill and has had repeated and
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`significant personal contact with the customers at each of his restaurants. Apparently, Mr.
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`Turner views Ted’s Montana Grill as his primary business concern, and is actively involved in
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`the details relating to the operation and promotion of the business. An October 5, 2003 article in
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`the New York Times states:
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`Three years ago, Ted Tumer’s effort to restore the country’s bison herds
`was such a success that it created a problem: a glut of bison meat. So Mr.
`Turner has started a restaurant chain, Ted’s Montana Grill, where he is
`turning bison into burgers and, in the process, hoping to build what he
`calls “another great fortune.”
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`****
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`Wearing a dark suit and a tie adorned with -- what else? —— bison images,
`Mr. Turner, 64, was promoting the concept with the same touch of
`huckerism that he once used to convert skeptics who did not see the
`potential of CNN, the 24-hour news network he founded.
`****
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`So he [Ted Turner] is working to build another fortune with his restaurant
`chain.
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`The grills are decorated with reproductions of Western paintings and
`photographs that hang in his [Ted Tumer’s] ranch house, and the cuisine is
`derived from recipes handed over by his ranch cook.
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`As he does with CNN, he likes to think that the quality of his product is
`superior. “These fries are hand cut every morning,” he said, urging
`visitors to try a few.
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`****
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`He [Ted Turner] has poured about $30 million into the chain, and he
`makes a personal appearance at each restaurant opening, greeting
`customers at the door with a hearty handshake and a “Hi, I’m Ted,” much
`as he used to glad hand at cable conventions.
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`Clark Wolf, a restaurant consultant, said, “The restaurants have a better-
`than-average chance because showmanship is critical to the restaurant
`business, and Ted’s got it.”
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`But Mr. Turner, ever the optimist, is certain the restaurants will work.
`And they fill a void that was left as his role in the cable business
`diminished.
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`_S_e_e Higgins Decl., Exhibit F.
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`A December 6, 2002 article in the Rocky Mountain News (Denver, Colorado) on an
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`interview with Ted Turner states that Mr. Turner “had a mission: to promote Ted’s Montana
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`Grill”. E Higgins Decl., Exhibit G. The article continues: “’This is really fun,’ said Turner of
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`his restaurant foray.
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`‘There’s nothing like being involved with an operating business.
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`I like to
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`work.”’ I_d.
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`Mr. Turner echoed this sentiment in an October 13, 2003 article in Nation’s Restaurant
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`News by stating “[s]eriously, I’m proud to be in the restaurant business” and “I plan to finish out
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`my career when I’m 95, greeting customers at the door of Ted’s Montana Gri1l..” Sg Higgins
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`Decl., Exhibit H.
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`Mr. Tumer’s participation in promoting Ted’s Montana Grill was recognized in a May
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`26, 2003 article in Fortune that further reveals Ted’s motivation and participation in launching
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`and operating Ted’s Montana Grill. Sfi Higgins Decl., Exhibit 1. The article states that Mr.
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`Turner has made Ted’s Montana Grill his new passion and enjoys “his total control” over the
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`restaurant. Li.
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`From just this sampling of publicly available articles, it is apparent that Mr. Turner has
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`personal knowledge of facts listed above relevant to this proceeding. Applicant does not contend
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`otherwise, which is telling given that the Applicant’s motion (e.g., Mr. McKerrow’s Declaration)
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`mentions each of these facts, but only states what knowledge Mr. McKerrow allegedly has with
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`regard to each one, and does not contend that Mr. Turner lacks personal knowledge of all these
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`facts.
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`B.
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`Applicant Provides No Legal Or Factual Justification For Precluding The
`Deposition Of Mr. Turner
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`Applicant does not contend that Mr. Turner lacks personal knowledge of facts relevant to
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`this case, but rather asserts that a protective order should nonetheless be issued because: (1) there
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`are other persons with equal or greater knowledge of the relevant facts, citing FMR Corp. v.
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`Alliant Partners, 51 U.S.P.Q.2d 1759 (T.T.A.B. 1999); and (2) it is needed to protect Mr. Turner
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`from harassment and abuse. Applicant is wrong on both the law and the facts.
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`i.
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`There Is No Need To Consider Persons With Egual Or Greater
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`Knowledge Of The Relevant Facts
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`Through its first contention, Applicant is asking this Board to adopt and apply the
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`guidelines set forth in FMR Corp, which include the consideration as to whether there are other
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`persons with equal or greater knowledge of the relevant facts. However, FMR Corp. is factually
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`dissimilar and not applicable to Opposer’s attempt to depose Mr. Turner.
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`FMR Corp. involved the depositions of very high-level officials of a large corporation
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`who, unlike Mr. Turner, appeared to lack personal involvement and personal knowledge of
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`relevant facts. As the court held in In re Bridgestone/Firestone, Inc., 205 F.R.D. 535, this is a
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`crucial distinction. In In re Bridgestone/Firestone, Inc., Ford tried to prevent the deposition of
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`William Clay Ford, Jr., Chairman of the Board of Ford Motor Company.
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`I_d_. at 535. As support,
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`Ford cited the very cases FMR Corp. relies upon regarding the deposition of “apex” officials.
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`The court rejected Ford’s argument, holding:
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`First, the plaintiffs did present evidence that Mr. Ford has referred to his
`personal knowledge of and involvement in certain relevant matters,
`including the Firestone tire recall, Explorer safety issues, and Ford's
`response to the tire and Explorer issues. Federal courts have permitted the
`depositions of high level executives when conduct and knowledge at the
`highest corporate levels of the defendant are relevant in the case. See S_ix
`West Retail Acguisition V. Sony Theatre Management, 203 F.R.D. 98
`gS.D.N.Y. 2001 1; Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140
`gD. Mass. 1987 Q. The evidence produced by the plaintiffs persuades us that
`it is appropriate for Mr. Ford to be deposed at this juncture in this action.
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`7
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`Second, the cases upon which Ford relies for its position that courts
`impose a burden on the proponent of the deposition to demonstrate the
`"apex" official's unique personal knowledge stop well short of establishing
`a rigid rule applicable in all cases. Nearly every decision Ford has cited
`involves an individual personal injury, employment, or contract dispute
`with which the "apex" official had no personal involvement. See, e.g.,
`Thomas V. IBM, 48 F.3d 478 (10th Cir. 1995 )(individual employment
`case); Salter v. Upjohn Co., 593 F.2d 649 15th Cir. 1979 )(individual
`negligence case); Baine v. General Motors, 141 F.R.D. 332 (M.D. Ala.
`1991 )(individual personal injury case); Mulvey v. Chrysler Corp., 106
`F.R.D. 364 (D. R.I.) 1985)(individual personal injury case). Generally, the
`courts‘ rationale for barring those depositions absent the required showing
`is that high level executives are vulnerable to numerous, repetitive,
`harassing, and abusive depositions, and therefore need some measure of
`protection from the courts.
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`We are unwilling, however, to require rigid adherence to the burdens
`imposed under the facts of those cases, because the circumstances here are
`quite different and the rationale for the severe limitations on the right to
`depose a high level executive is not compelling in this case.
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`In re Bridgestone/Firestone, Inc., 205 F.R.D. at 536.
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`The court stated that one of the main reasons the circumstances were different is the fact
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`that “conduct and knowledge at Ford’s highest corporate levels may well be relevant to the
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`issues presented in this litigation.” 1;
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`Another court came to a similar conclusion in Nyfield v. Virgin Islands Tel. Corp, 202
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`F.R.D. 192 (D. V.I. 2001). The defendants in that case sought a protective order preventing the
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`deposition of the CEO of one ofthe defendants, alleging that “depositions of CEO's are not
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`routinely permitted” and that “plaintiff should not be permitted to unduly burden top corporate
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`officers based upon mere allegations.” I_d_. at 193. The defendants also contended that the
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`deposition “not take place until ‘. . .(l) the completion of all other scheduled Rule 30(b)(6) and
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`individual depositions and (2) a showing that [the CEO’s] deposition is still needed in this
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`case.”’ L1. The court denied the protective order finding that the CEO “has not made any
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`averment of lack of knowledge” of the relevant facts. Q at 194. The court also held that the
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`cause of action arose out of a specific corporate action, and “it is inconceivable that any such
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`policy decision could be made without [the CEO’s] approval and acquiescence.” Id The court
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`held that “[w]hen the motives behind corporate action are at issue, an opposing party usually has
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`to depose those officers and employees who, in fact, approved and administered the particular
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`action.” I_cL (quotation and citation omitted).
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`Opposer submits that like In re Bridgestone/Firestone, Inc. and i, Mr. Turner’s
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`admitted personal involvement and personal knowledge of the relevant facts distinguishes this
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`case from the holding of FMR Corp. and the “apex” corporate official cases cited therein. Mr.
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`Turner participated in the decision to adopt, use and promote Applicant’s mark, and likely
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`participated in the decision to apply for federal registration. Therefore, Opposer should have the
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`right to ask Mr. Turner about his involvement, decisions, basis for his decisions, and other
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`relevant facts known personally to Mr. Turner.
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`Further, Opposer has shown no intent or motivation to use the deposition process to
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`harass Mr. Turner. Opposer noted his deposition in Atlanta, Georgia where Mr. Turner and
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`Ted’s Montana Grill headquarters are located. Pursuant to the applicable rules of procedure, this
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`deposition is limited to one day of seven hours. _S_@ Fed. R. Civ. P. 30(d)(2). As shown in
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`Applicant’s Exhibits C-F, Applicant noted Mr. Turner’s deposition on October 9, 2003, after the
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`depositions of Ms. Alvarez (October 8”‘), Mr. McKerrow (October 7”‘), and Applicant’s 30(b)(6)
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`designee (October 7”‘). Therefore, contrary to Applicant’s suggestions to the contrary, Opposer
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`did not jump right to Mr. Turner and ignore other witnesses. Lastly, Opposer has made it clear
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`with this filing and previous discussions with Applicant’s counsel that Mr. Tumer’s deposition
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`will be conducted for the purposes of seeking relevant information. Applicant does not contend
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`that Mr. Turner lacks personal knowledge of such information. Nor has applicant submitted any
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`evidence of any undue burden Mr. Turner will face by undergoing a one day seven hour
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`deposition.
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`As an additional matter, Ted Turner is not being deposed as a “Very high-level official of
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`a large corporation.” Opposer is seeking to depose Mr. Turner to obtain relevant facts he has
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`knowledge of as a result of being co-owner of, and active participant in, Ted’s Montana Grill.
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`Ted’s Montana Grill is not a “large corporation” and Applicant makes no showing that it is. It,
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`obviously, is a small corporation in which Mr. Turner has substantial control and authority.
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`Ted’s Montana Grill is nothing like the companies in the FMR Com. case G7idelity) and the
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`cases cited therein (e.g., Upjohn Co., Chrysler Corp., General Motors). Nor is there any
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`evidence that Mr. Tumer’s position as co-owner of Ted’s Montana Grill makes the taking of his
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`deposition disruptive to the functioning of the business as a whole, or more prone to harassment.
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`Any such allegation is undermined by App1icant’s counsel’s encouraging the deposition of
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`fellow co-owner George McKerrow, who is also the President and CEO of Ted’s Montana Grill,
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`even though Applicant urges this Board to believe that Mr. McKerrow participates more in the
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`management of the business than Mr. Turner. App1icant’s argument offering up Mr. McKerrow
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`(clearly an “apex” offlcer of Applicant) for deposition is inconsistent with its citation to £11113
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`C_orp, and other cases involving the depositions of “apex” officers. The concerns that formed the
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`basis for those decisions simply do not exist in this case.
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`Regardless, Applicant has not met its burden of proof even under FMR Corp. The Board
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`held that “when a party seeks to depose a very high-level official of a large corporation, and that
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`official (or corporation) files a motion for protective order to prohibit the deposition, the movant
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`must demonstrate through an affidavit or other evidence that the official has no direct knowledge
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`of the relevant facts or that there are other persons with equal or greater knowledge of the
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`relevant facts.” FMR Corp, 51 U.S.P.Q.2d at 1763. Upon such a showing, the burden then shifts
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`10
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`to the non-moving party to “show that the official has unique or superior personal knowledge of
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`relevant facts.” ILL
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`First, Applicant does not, and cannot, contend that Mr. Turner lacks direct knowledge of
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`the relevant facts. Second, Applicant has failed to establish that there are, in fact, other persons
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`with equal or greater knowledge of all the relevant facts. Applicant’s Motion states that Mr.
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`McKerrow and Ms. Alvarez are the most knowledgeable persons as to all the relevant facts of
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`the case. This self-serving statement is not borne out by the facts, however. The publicly
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`available information discussed above suggests that with regard to at least some areas (e. g., Mr.
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`Tumer’s personal decision to adopt and use Applicant’s Mark, Mr. Tumer’s personal knowledge
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`or lack thereof of Opposer’s mark and other similar third party marks, Mr. Tumer’s personal
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`promotional efforts, Mr. Tumer’s personal experience in interacting with customers, especially
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`in connection with Applicant’s restaurants close to Opposer’s restaurant where instances of
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`actual confusion are most likely to occur) Mr. Tumer’s knowledge is unique and no one can have
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`equal or greater information than Mr. Turner. Relevant facts in this case consist of the personal
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`knowledge Mr. Turner, as co-owner, has regarding the decision to adopt and use Applicant’s
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`mark.
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`It is disingenuous to suggest that Ted Turner, with 80% ownership of Ted’s Montana
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`Grill, a company purportedly bearing his name, who actively and personally participates and
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`promotes the openings of and the actual operation of the restaurants and claims responsibility for
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`the concept, would have no relevant information; At the very least, Opposer is entitled to
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`9 According to the NEWS portion of Applicant’s web site produced to Opposer as Bates No. T0168, Mr.
`Turner is funding 80% of Ted’s Montana Grill.
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`11
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`determine for itself whether Mr. Turner lacks relevant knowledge of the intent of the owners, of
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`which he is one, relative to the adoption, actual and intended use, advertising and promotion, and
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`application for federal registration of the opposed mark, as well as other facts relevant to this
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`proceeding. Mr. Turner is the only person who can substantiate his lack of knowledge on
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`relevant facts in the face of his own claims of active participation. Moreover, Opposer should
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`have the opportunity to depose Mr. Turner if for no other reason than for the purposes of
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`verifying or contradicting the testimony of Mr. McKerrow and other witnesses. No one else is
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`qualified to testify in such a manner.
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`ii.
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`There Is No Evidence That Mr. Turner’s Deposition Will
`Cause Annoyance, Embarrassment, Oppression, Or Undue
`Burden And Expense
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`Applicant provides no factual or legal support for its contention that Opposer noticed Ted
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`Tumer’s deposition solely for harassment purposes, or that such a deposition will cause undue
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`burden.
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`In a nutshell, Applicant’s argument appears to be that because Mr. Turner is a high-
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`profile, celebrity billionaire, Opposer’s primary reason for deposing him must be to harass and
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`annoy him. E Applicant’s Mot. at 6. What Applicant conveniently ignores is the ample
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`evidence discussed above showing that Mr. Turner was and is actively involved in Ted’s
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`Montana Grill to such an extent as to provide him with personal knowledge of relevant facts.
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`Indeed, it is reasonable to conclude that Mr. Turner has unique personal knowledge of relevant
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`facts that cannot be obtained from anyone else. There is simply no evidence of harassment.
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`The cases cited by Applicant are dissimilar and offer no support for its assertions. For
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`the reasons discussed above in connection with the FMR Corp case, that case and firiei
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`General Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991) implicate policy concerns that do not
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`exist here. The case of Comty. Fed. Sav. & Loan Ass’n v. Fed. Home Loan Bank Bd., 96 F.R.D.
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`12
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`

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`619 (D.D.C. 1983) involves the very specific and unique issue of seeking the deposition of
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`governmental agency officials, which is not the case here} Finally, Elvis Presley Enters, Inc. v.
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`Elvisly Yours, Ltd, 936 F.2d 889 (6th Cir. 1991) involved a deponent who, unlike here, filed an
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`affidavit “attesting that she had no personal knowledge of the facts giving rise to the litigation”.
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`BL at 892.
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`II.
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`CONCLUSION
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`For the foregoing reasons, Opposer submits that the Applicant’s motion for a protective
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`order should be denied.
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`Respectfully submitted,
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`MONTANA GRILLE, LLC
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` By:
`
`/W. Ma’cl(’VVebner
`Jody H. Drake
`Paul M. Higgins
`Attorneys for Opposer
`SUGHRUE MION, PLLC
`2100 Pennsylvania Avenue, N.W.
`Washington, DC 20037-3202
`Telephone: (202) 293-7060
`Facsimile: (202) 293-7860
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`Date: November 25, 2003
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`
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`5 Further, unlike here, there was no evidence that the deponents had any unique personal involvement
`and knowledge regarding the relevant facts.
`I_d, at 621.
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`13
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`

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`CERTIFICATE OF SERVICE
`
`I hereby certify that a true copy of the foregoing OPPOSER’S OPPOSITION TO
`APPLICANT’S MOTION FOR PROTECTIVE ORDER PREVENTING THE
`DEPOSITION OF ROBERT EDWARD “TED” TURNER III and DECLARATION OF
`PAUL M. HIGGINS IN SUPPORT OF OPPOSER’S OPPOSITION was served on
`App1icant’s counsel Via first—c1ass mail, postage prepaid on November 25, 2003, at the address
`shown below;
`
`Robert W. Zelnick, Esquire
`John J. Dabney, Esquire
`MCDERMOTT, WILL & EMERY
`600 Thirteenth Street, N.W.
`Washington D.C. 20005-3096
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Attorney Ref. 500-185
`
`
`
`
`Montana Grille, LLC,
`
`Opposer,
`
`V-
`
`1 1-25-2003
`
`u.s. Patent & TMOfcITM Mail Rcpt 0t. #22
`
`Consolidated Opposition Nos.
`91/155,890 and 91/156,769
`
`Ted’s Montana Grill, Inc.,
`
`Applicant.
`
`DECLARATION OF PAUL M. HIGGINS IN SUPPORT OF OPPOSER’S
`OPPOSITION TO APPLICANT’S MOTION FOR PROTECTIVE ORDER
`PREVENTING THE DEPOSITION OF ROBERT EDWARD “TED” TURNER III
`
`1, Paul M. Higgins, declare and state:
`
`1.
`
`I am an associate with the law firm of Sughrue Mion, PLLC.
`
`I submit this Declaration in
`
`support of Plaintiffs Opposition to App1icant’s Motion For Protective Order Preventing The
`
`Deposition Of Robert Edward “Ted” Turner III. I have personal knowledge of the facts stated
`
`herein and, if called upon to do so, could and would testify competently thereto.
`
`2.
`
`Attached as Exhibit A is a true and correct copy of an article I obtained from the LEXIS
`
`Internet database regarding Ted Turner and Ted’s Montana Grill.
`
`3.
`
`Attached as Exhibit B is a true and correct copy of App1icant’s Press Release that was
`
`produced by Applicant at Bates Nos. T0172-0173.
`
`4.
`
`Attached as Exhibits C-H are true and correct copies of articles I obtained from the
`
`LEXIS Internet database regarding Ted Turner and Ted’s Montana Grill.
`
`

`
`5.
`
`Attached as Exhibit I is a true and correct copy of an article from the May 26, 2003
`
`edition of Fortune magazine.
`
`I declare under penalty of perjury under the laws of the United States that the foregoing is true
`and correct.
`
`Date:
`
`ll 95» 03
`
`'7&
`
`Paul M. Higgins
`
`

`
`Search — 70 Results - "ted's montana grill"
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`'
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`page 1 of4
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`\1
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`Source: News & Business > News > Magazine stories, combined
`Terms: "ted's montana grill" (Edit Search)
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`‘Select for FOCUS” or Delivery
`V
`
`Nation's Restaurant News October 13, 2003
`
`Copyright 2003 Gale Group, Inc.
`ASAP
`
`Copyright 2003 Reproduced with permission of the copyright holder. Further reproduction or
`distribution is prohibited without permission.
`Nation's Restaurant News
`
`SECTION: No. 41, Vol. 37; Pg. 48; ISSN: 0028-0518
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`October 13, 2003
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`IAC-ACC-NO: 108969388
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`LENGTH: 1199 words
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`Ell".
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`:-
`Q
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`il
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`l.|
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`HEADLINE: Hot Concepts! winners share tips for marketing diverse brands; Multi-Unit
`Foodservice Operators conference
`
`BYLINE: Prewitt, Milford
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`BODY:
`In the years since the Multi-Unit Foodservice Operators conference started spotlighting up-
`and-coming brands dubbed "hot concepts," rarely has the spectrum of restaurants honored
`been as diversified as this year's crop of winners.
`
`Consider Ted's Montana Grill, named after billionaire entrepreneur and CNN founder Ted
`Turner, who entered foodservice with a 12-unit casual-dinnerhouse chain that serves bison
`as its core protein. Then there's Grand Lux Care, an offshoot of its parent, "The Cheesecake
`Factory, which now has three units and a more upscale dining room atmosphere and higher
`price point than the company's flagship concept. And don't forget Raising Cane's Chicken
`Fingers, the 14-unit, primarily southern-Louisiana-based quick-serve brand with a secret
`sauce that keeps customers faithful and dependable.
`
`Also consider Fogo de Chao, a four-unit Brazilian-style churrascaria based in Dallas, which
`intends to expand.
`
`And rounding out the list is Smokey Bones BBQ, the newest full-service restaurant chain
`launched four years ago by Darden Restaurants, best known for its Olive Garden, Red.
`Lobster and Bahama Breeze brands.
`
`If this past summer's sales season was any harbinger of future success, the Hot Concepts!
`panelists were unanimous in boasting particularly strong same-store sales gains despite the
`continued soft economic recovery, high unemployment, bad weather, high gasoline prices
`and a historic blackout.
`I
`
`Turner, who gave a keynote speech the day after the Hot Concepts! panel, said developing
`Ted's Montana Grill into a national chain,_ possibly with as many as 500 units, throughhis
`Ted Turner Enterprises, Inc., will be the driving ambition of his remaining working years.
`
`Now 65, Turner, who at one time was the vice chairman of AOL Time Warner, said he created
`
`https://www.1exis.com/research/retrieve?_m=7d777ae96d4b6040ed260292966610a6&do...
`
`1 1/19/2003
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`

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`
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`_:_ Searczh — 70 Results - "ted's montana grill"
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`1
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`Page 2 of4
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`the restaurant in concert with George McKerrow Jr., president and chief executive of Ted's
`Montana Grill and founder of the Long-Horn Steakhouse chain.
`
`"Fact of the manner is,. I needed a job," Turner said, joking in his signature Georgian accent.
`"It's kind ofhard getting a job when you are 65. Nobody wants to hire you."
`
`Having long invested in bison herds in the West, Turner said he knew that he could harvest
`the animals to produce an alternative to steakhouses by serving a protein that was lower in
`fat with a richer flavor profile.
`
`At the same time, Turner said the restaurant would do a good turn for the environment in
`that demand for bison meat will help propagate a species that not too long ago was nearly
`extinct. He owns 32,000 head of bison on 14 ranches.
`
`On the panel McKerrow said the brand is attracting consumers without commercials but with
`bison meat--now accounting for 57 percent of sales--and the distinctive buildings that play
`into an outdoor, Western rodeo motif.
`
`"The 800-pound gorilla for any growing brand is when to do a commercial," he said.
`
`"We will open 20 to 24 stores next year. I think we have a unique product, the great
`American bison, an underutilized protein," he added.
`
`But McKerrow admitted that with bison as the primary, protein on the menu, he knows Ted's
`Montana Grill may not attract some restaurantgoers.
`
`"I guess the downside is that I don't want to see the veto vote, but then again I don't know if
`we have to be all things to all people," he said.
`
`Todd Graves, whose business card lists him as "founder, chairman, CEO, president, fry cook
`and cashier" of Raising Cane's Chicken Fingers in Baton Rouge, La., said offering just one
`protein has not proved to be a burden for his quick-serve concept.
`
`Having opened five of the chain's 14 units this year--all in southwestern Louisiana--Graves is